Fall issue preview of Stanford Lawyer magazine

By Sharon Driscoll

The photos flashing on the screen required little explanation, though Michael Bien offered it anyway to students assembled for their third meeting of the fall quarter’s Advanced Seminar on Criminal Law & Public Policy: A Research Practicum.

“Areas that once provided recreation space are now lined with bunk beds, some three high. The dormitory is jammed with hundreds of prisoners, many suffering from mental illness, contagious disease a constant threat. Broom closets have been turned into medical units, and makeshift metal cages lined up along the walls and in hallways serve as holding cells for prisoners on suicide watch.”

The photos displayed for the students were some of the same submitted by Bien and his co-counsel to the U.S. Supreme Court as evidence in Brown v. Plata, in which the Court ruled that California must bring its prison system’s extreme overcrowding under control.

That ruling put immediate pressure on California by ordering that the prison system’s population be reduced by approximately 30,000, to 137.5 percent of its capacity by 2013 (it has been as high as 200 percent of capacity). AB 109, which went into effect October 1 of this year, is the state’s response to that pressure. Signed into law by California Governor Jerry Brown last spring, it shifts responsibility for certain lower-level offenders from the state to county authority in what is called “realignment.”

“This is the most dramatic change in criminal sentencing that California has undertaken since passage of Determinate Sentencing in 1977, and no other state has tried it,” says Joan Petersilia, Adelbert H. Sweet Professor of Law and faculty co-director of the Stanford Criminal Justice Center (SCJC). “We were bloated and dysfunctional but this is very dramatic.”

The legislation offers counties an unprecedented amount of flexibility in most areas of community supervision, including sentencing and early release for low-level offenders, alternative sanctions (ankle bracelets, substance abuse rehabilitation, etc.), supervised probation and parole, and delivery of social services. “This could be a game changer,” says Petersilia. She explains that the current situation is untenable, even from a purely budgetary standpoint: The cost of California’s prison system has risen from 4 percent of the budget in the mid 1980s to more than 10 percent today. Yet recidivism is at 70 percent—the highest in the country. The hope is that funds redirected to counties will be put to more effective use in programs that stop that vicious cycle. “This could have far-reaching changes.”

It also presents a unique learning opportunity for Stanford Law School students.

The idea for the student seminar came about last year when California Attorney General Kamala Harris asked Petersilia to work closely with her to study the state’s recidivism problem. Petersilia had to beg off—after all, she has to teach—but suggested that the project be made into a class. Harris agreed. When AB 109 passed, the project narrowed in focus and also took on greater urgency: The new legislation does not include funding for study, and there is no plan for comprehensive research into how each of California’s 58 counties will address realignment. The class will fill some of that gap by studying one county’s efforts to implement the legislation, providing what Petersilia and Harris hope will be a model for best practices.

“This is a unique opportunity for us in the California Department of Justice to partner with Joan, who is the leading thinker nationwide on these kinds of criminal justice issues,” says Michael Troncoso, acting chief deputy attorney general.

A nationally recognized criminologist, Petersilia has immersed herself in issues related to realignment for the best part of 25 years, focusing primarily on reentry. An empiricist who was the director of the Criminal Justice Program at the RAND Corporation, her expertise is politically neutral—and highly sought. She has served as a special advisor to Governor Arnold Schwarzenegger, helping to reorganize adult corrections and working with the California State Legislature to implement prison and parole reform (she was standing next to him at the signing ceremony for AB 900, which authorized nearly $8 billion for prison construction and rehabilitation initiatives). She chaired Governor Schwarzenegger’s Rehabilitation Strike Team and was also co-chair of California’s expert panel on offender rehabilitation programs. Governor Brown quickly sought her advice after taking office.

“We’re a little bit off the map with this legislation,” Troncoso adds. “And the person everyone turns to on an issue like this when undertaking such a dramatic shift in responsibility is Joan. Can she help draw the map? And that’s what she’s doing, helping policymakers start to draw the map, showing us what makes sense, what is working or can work.”

It’s the scholarly opportunity of a lifetime for Petersilia and her students to explore the broad implications of the groundbreaking legislation in real time, as it is rolling out.

While working closely with the AG’s office, Petersilia knew the seminar needed the input of officials at the frontline of this change. She asked Santa Clara County to allow her students to conduct their research there—in their courts and halls of government. The county agreed. Now other counties are looking to Petersilia and the students’ projects—hoping that the work they produce provides useful guidance on what is working and what isn’t—and soon.

“Any time we can utilize the intelligence of Stanford Law School students we only see an upside,” says Gary Graves, COO for Santa Clara County. “We have a lot of professionals working here who have been in this business for a long time. We hope to get a fresh perspective and the enthusiasm of students.”

Petersilia calls the class a “makeshift policy institute,” with students treating the AG and Santa Clara County’s Community Corrections Partnership (CCP) as their “clients.” Topics for study were suggested by Governor Jerry Brown, leaders in the prison system at the local and state level, as well as the class’s two clients. Matthew Cate, secretary of the California Department of Corrections and Rehabilitation, will visit the class late this month and share his insights, as will Harris and other key players working on the issues. Students will explore a variety of crucial questions: How does AB 109 affect the courtroom work group? Do offenders really access more local services with decentralization of supervision? What are the legal barriers to successful reentry into society for things such as housing? What does the new offender in county jail look like—is the profile very different from before AB 109? And so on.

When asked why they signed up for the seminar, the students’ first answer is the same: to study with Petersilia, to learn from her. While not all of them will follow Petersilia into the criminal justice policy field, they see tremendous value in her instruction.

Malaina Freedman, JD ’12, and two classmates are focusing their research on the effect of AB 109 on the courtroom.

With Santa Clara County as their testing ground, they are meeting with the various players—prosecutors, criminal defense attorneys, judges, and judicial officers—trying to form a picture while it’s being drawn. “I hope that we deliver something useful,” says Freedman. “It’s a little bit scary to think that there are a lot of eyes on us.”

Freedman is planning to join a San Francisco firm after graduation, but the experience of both a clinic and taking Petersilia’s courses helped her land the position. “The firm does a lot of pro bono work and was very interested in those experiences. Taking complex ideas and learning how to present them in a concise way. Working in teams. And in this seminar we’ll actually present our findings to AG Kamala Harris—what an incredible opportunity,” says Freedman.

“California is a testing ground for criminal reorganization. And we get to study it as it’s rolled out,” says Lorenzo Arroyo, JD ’13, who is exploring legal issues of “flash incarceration” (short jail terms imposed when probation and parolees fail drug tests) and how the new law might influence its use. He spent last summer working with the ACLU in Los Angeles and is very interested in criminal policy and litigation work focusing on education. “It’s a fabulous opportunity to see how the macro determinations play out on the local level. And to help to inform that process.”

For Angela McCray, JD ’12, this seminar in not just an opportunity to once again study with Petersilia, something she calls “profound,” but also to tie together criminal justice issues to her main interest of poverty and economic development (she has a business background and worked in public accounting before coming to SLS). “The elephant in the room when people talk about the struggles of the poor is incarceration,” she says. “The two areas are intimately connected.”

Nayna Gupta, JD ’12, who is quickly coming up to speed on housing issues that newly released prisoners face, sees the class as very timely. “So much of what we do in law school is doctrinal and theory based. Important building blocks, yes, but I like working on the real issues. And this is so relevant right now,” says Gupta, who plans to be a public interest lawyer when she graduates. “And the opportunity to collaborate with Kamala Harris is just incredible.”

The students’ work could inform some of the most important changes in criminal policy ever undertaken. Graves, who called preparing for implementation of AB 109 on October 1 “a fire drill,” says that in Santa Clara County plans are in place to address resource needs in the near term in areas such as parole (with an immediate increase, as approximately 120 individuals who would have been released under state parole supervision were transferred to his county) and services. But as long as the state can continue to fund the increased burden that is being put on counties, he’s feeling optimistic.

“We do see this as an opportunity to actually impact recidivism,” he says. “The goal is to not spend so much money on corrections and to try to correct the vicious circle of recidivism—reversing the kinds of policy that caused overcrowding at the state level. And we do believe that we in the county are in the best position to make a difference.”

As seriously as the students are taking this project, the attorney general may be taking it even more so. “The AG is expecting advice that she will be able to use and that will be functional and serviceable. This is a real-life assignment—they aren’t just writing a paper,” says Troncoso. It’s also the beginning of what could be an ongoing partnership.

“It’s a model of public/private partnership with policymakers at the state level and the academy combining forces to tackle some of the biggest challenges we face, and realignment is a unique opportunity in terms of public policy,” he says. “This isn’t about one class, but about building a relationship between Stanford and the California government, one that we want to see grow.” SL

Additional resources:

October 27, 2011 from 11:00 am – 12:00 pm: California Attorney General Kamala D. Harris will speak at Stanford Law School about her work as chief law enforcement officer for the state in reducing recidivism and on reforming the state’s revolving door prison system. This event is open to the public. Please RSVP by clicking here.